Like many "centrist" democrats I was not one to be carried by the high anger case for impeachment. As Angry as the "torture memos" made me, I figured the Supreme Court, court cases and Congress would put a stop to this travesty, and that military justice would eventually hold those really accountable for the abuses at Abu Gharaib accountable. I thought that when McCain finally stood up for himself, and the Senate agreed, that the President would finally take International and National Law seriously. For all that this is a neo-conservative administration I didn't think this was a fascist administration. I may have been mistaken. The President interjected this passage into his signing statement for the Emergency appropriation bill that is funding the fight in Iraq:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.1
Now that is a lot of words about a provision intended to ban torture. Why all these words?
Several sources say that the President is saying he's not going to abide by this law. Are they right or wrong? Well to figure this out we need to read the citations the President put into this signing statement and find what the hell he is talking about. What is Alexander versus Sandoval. What principles is he referring to? Ah it's hard to find, but the opinion is in a "bound volume" at the Supreme Court website. It's a huge volume. Basically Alexander versus Sandoval held that unless Congress expressly held that people could sue to enforce the law, they couldn't sue. Or to put it in the proper parsing language
"There is no private right of action to enforce disparate-impact regulations promulgated under Title VI."
The principle the Attourney General Gonzales is asserting is that while the Congress may tell the government not to use torture, no private person may sue to enforce the McCain Amendment, unless the McCain Amendment expressly put in a provision calling for such a capability. Basically it is saying that unless the right is expressly granted to the people by a law it is denied to the people. And it is saying that "okay you want to pass this law, nobody can enforce it unless we decide to enforce it." Which gets back to the parsing language that was in the first and second torture memos. The ones that spawned the policy that led to Abu Gharaib.
Okay, bad enough, but what does the line "...in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks." Well the notion of the "Unitary executive" is the most problematic line of the entire paragraph. This line is saying that the President cannot be constrained by validly enacted laws during time of war. This notion was at the heart of the case made in the two torture memos written in 2002 and 2003. The Cato Institute reprises much of this notion in their article "PowerSurge."
The Bush administration’s view that the
president, in time of war, is unrestrained by
law is on display in a series of internal Justice
and Defense Department memoranda written
in 2002 and 2003 and publicly revealed in
2004. In those memos, Bush administration
lawyers argued that Congress is powerless to
interfere with the president’s authority to
order torture of enemy prisoners if the president
decides such action will be useful in
prosecuting the war on terror.
Much of the public discussion about the
“torture memos” has focused on the narrowness
of their definition of torture and the question of
whether the Geneva Convention covers Al Qaeda and Taliban prisoners. Reasonable people can debate those issues, but what’s perhaps
most disturbing about the memos is their assertion
that the president cannot be restrained by
validly enacted laws.2
This is visibly on display in this quote. As the Cato Institute notes:
According to the memos, prohibiting torture
infringes on the president’s constitutional power
as commander in chief. As an August 1, 2002,
memo puts it, “Congress can no more interfere
with the president’s conduct of the interrogation
of enemy combatants than it can dictate strategic
or tactical decisions on the battlefield.”36 The
legal reasoning employed in the August 2002
memo resurfaces in a March 2003 Pentagon
memo prepared for Secretary of Defense Donald
Rumsfeld, which holds that “[a]ny effort by
Congress to regulate the interrogation of unlawful
combatants would violate the Constitution’s
sole vesting of the commander-in-chief authority
in the President.”3
This is the unitary executive theory, which justifies itself on the notion that the United States is a battlefield, and that therefore the President is able to do what he wants unrestricted by law when it comes to national security, military matters, and dealing with the Enemy. The Cato institute article also quotes from the Padilla Case:
During oral argument
in the Padilla case, Judge Luttig told
Deputy Solicitor General Paul Clement that
accusations that Padilla was an enemy combatant
“don’t get you very far, unless you’re prepared
to boldly say the United States is a battlefield
in the war on terror.” Clement replied,
“I can say that, and I can say it boldly.”4
As the Cato institute notes next, this doctrine is nonsense.
The Constitution’s text will not support anything like the doctrine of presidential absolutism the administration flirts with in the torture memos. It gives Congress powers that bear directly on the issue of military conduct and war crimes, including the power “To make Rules for the Government and Regulation of the land and naval Forces” and the power “To define and punish . . .Offences against the Law of Nations” — such as violations of international covenants against torture. And the president, in addition to his oath to uphold the Constitution, is commanded by that document to “take Care that the Laws be faithfully executed.
The Constitution says: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The President may be able to abrogate treaties, but when a treaty is backed by law, it is pretty clear that such laws bind the President as much as the rest of us.
Even the following passage of the Constitution, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." has been held to mean that only Congress can suspend the writ of habeas corpus -- and nobody can suspend it indefinately. Even during the first civil war Lincoln was prevented from permanently suspending habeas corpus and rebuked for trying. Again the Cato institute notes;
The federal government did try people
before military commissions during the Civil
War. To facilitate that process, President
Lincoln suspended the writ of habeas corpus—
so that the prisoners could not challenge the
legality of their arrest or conviction in a civilian
court.91 The one case that did reach the
Supreme Court, Ex Parte Milligan (1866),
deserves careful attention
Speed was the first to advance the notion of "unitary executive" when he maintained "that
the legal guarantees set forth in the Bill of Rights were “peace provisions.” During wartime,
he argued, the federal government can suspend the Bill of Rights and impose martial
law. If the government chooses to exercise that option, the commanding military officer
becomes “the supreme legislator, supreme judge, and supreme executive.” If that view then we might as well promote Bush to "President for Life" now. Wars and Rumors of war have become permanent features of our terrorism driven Republican politica class. They want us to be at war forever. If it's not a literal enemy it's some figurative enemy like "terrorism." The war on terrorism is the war on fear. If the enemy can't make us give up our constitution by fear, why should we give it up by letting our own leadership scare us into that?
The Supreme Court ultimately rejected the
legal position advanced by Attorney General
Speed.
The President has been asserting that he has the power tot has been asserting that.
Congress has the "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." Not the President.
So what does all this mean? It means we have an executive bent on breaking the law, that is breaking the law and justifying it on grounds that will break the constitution if allowed to stand. At this point the Congress should be conducting an impeachment hearing, or we need to replace Congress.
I think we need to replace Congress. Even McCain is not doing his job.
Sources:
Further reading: